Prosecutor accused of improper remark in truck death case

Defense attorney in truck death case calls for an inquiry

Published 5:30 am, Friday, May 26, 2006

The chief prosecutor in the case against a truck driver blamed for the deaths of 19 illegal immigrants bragged that a federal judge who had made rulings unfavorable to the government would be removed from the case, a defense attorney alleges.

"It appears there has been an ex parte (private) conversation between Daniel Rodriguez and some member of the court," Washington said, referring to the assistant U.S. attorney heading the prosecution team. "That is not only unlawful; it is the subject of persons being sent to the penitentiary."

He said he has asked U.S. Attorney Don DeGabrielle to have Rodriguez give an affidavit about whether the accusation is true. DeGabrielle declined to comment on the allegation, except to say he believes Rodriguez has conducted himself ethically and lawfully.

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Washington based his accusation on an affidavit from David Adler, attorney for Williams' co-defendant, Victor Rodriguez, who was convicted in March on smuggling charges. Adler said he and four other defense attorneys were present in a courthouse hallway on Dec. 8 when Daniel Rodriguez predicted Gilmore's removal.

"(Rodriguez) was serious," Adler said Thursday. "I thought it was a crazy prediction, so I said, 'Has it even been asked for her to be taken off the case?' And he said, 'No, but they are going to do it.' "

Washington said he has asked the 5th Circuit Court for an en banc hearing of all 19 judges to reconsider Gilmore's removal from the Williams case.

Relations between prosecutors and Gilmore were rocky, with the government turning to the appeals court three times for relief from her rulings. Different three-judge panels sided with prosecutors each time, once scolding Gilmore and finally removing her.

The action was unusual because prosecutors had not sought the removal. Judges Patrick Higginbotham, Harold DeMoss Jr. and Priscilla Owen wrote they were removing Gilmore because of her busy schedule. She denied her schedule was too busy, accusing the panel of a "rear-guard attack."

Another three-judge panel last year denied prosecutors' request for Gilmore's removal.

The case has been assigned to U.S. District Judge Lee Rosenthal, who has scheduled jury selection in Williams' retrial for Oct. 3. A jury failed to reach a decision on all 58 counts in his first trial in March 2005.

Williams is the first person against whom the government has sought the death penalty under a 1994 smuggling law. Prosecutors say he ignored at least 74 illegal immigrants sealed inside the trailer he was towing as they pounded on the walls for help because of intense heat and lack of air.

His trailer was found May 14, 2003, at a Victoria truck stop with 17 bodies. Two more riders died at a hospital.

Of the 13 other people indicted in the case, five have been convicted by juries, five pleaded guilty, one was acquitted, charges against one were dropped and one is a fugitive.